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Emotions still run high over Biser’s death

CHILLICOTHE – More than a decade after a thrown punch on a Frankfort playground sent one man to prison and another family into mourning, those involved still find their lives intertwined.

John F. Smith, the man who threw the punch, went before Ross County Common Pleas Judge Scott Nusbaum this week for resentencing on his original conviction in the 2005 death of Bryan Biser, saying he was seeking justice to clear his name of an involuntary manslaughter charge.

Biser’s family, also seated in the courtroom, feels justice for them is elusive, despite Smith having already served the maximum eight-year prison sentence at the Madison Correctional Institution for the crime.

The case

Smith was sentenced on merged counts of involuntary manslaughter and felonious assault as the result of his decision on April 15, 2005, to take a swing at Biser near a playground by the Hokolesqua Apartments in Frankfort.

The swing came after Biser, 39, intervened to try to calm down those involved in disagreements that started when two children — one a distant relative of Smith’s — got into an altercation.

“Smith then walked around a car towards Biser, yelled an obscenity at him and hit him with a closed fist on the left side of his head ...” reads the facts of the case listed in records from the Fourth Appellate District.

Biser fell to the ground, hitting the side of his face on a parked car and his head on the pavement. He was later discharged from the hospital, but over the next day, he appeared confused to those who checked in on him, complained of feeling sick to his stomach and of a sore head, and asked to be left alone.

Four days after the incident, he was found unconscious on the floor struggling to breathe and with his arm turning black.

A CT scan at the emergency room revealed a possible skull fracture and other issues — the most serious being severe diabetic ketoacidosis described as “a lethal condition resulting from a diabetic’s failure to take prescribed insulin.”

He died after an exploratory surgery at Grant Medical Center in Columbus that discovered necrosis in his right bowel and a portion of his right colon. The death was ruled a homicide due to blunt force injuries.

Smith was found guilty by a jury in Biser’s death. In addition to his prison term, he also was instructed to pay about $49,018 in restitution to the family and another $7,500 to the state tied to burial expenses.

He appealed the sentenced to the Fourth Appellate District in 2007, claiming “unforeseeable intervening events” caused Biser’s death, that the evidence did not support the claim that the punch resulted in the death, and that his ability to pay was not considered in imposing the restitution amount. All three claims were denied by the court.

In a decision filed on April 23 of this year after Smith had completed his prison term, however, the U.S. Sixth Circuit Court of Appeals found that his trial counsel was ineffective “for not investigating or presenting evidence that Biser’s death resulted from a pre-existing medical condition, not Smith’s punch.”

That decision sent the case back to the lower court level with the option of either retrying Smith on the involuntary manslaughter charge or resentencing him to just felonious assault with credit for the prison time served. The court took the latter option.

Moving on

Smith, gratified by the dropping of the involuntary manslaughter charge but upset and still planning to appeal the restitution that he thought would be dropped, said he wishes the incident had never happened.

“(I think about that) every day, every day,” he said. “And I’m like, ‘Why am I being punished? Why did I do that?’ I couldn’t believe what I was going through and why did God put me in this predicament? Justice. I want the true justice to come out and say the man finally got justice after eight years.”

Smith doesn’t deny throwing the punch and said he had wanted to write a letter of apology to Biser’s family but was forbidden contact as part of the court case and prison sentence.

“I’m so, so sorry — I apologize to the deepest,” he said. “(Biser’s death) was not my fault, and I hope they understand that. It tore me up. The judge asked me if there was anything I wanted to say to them and I asked them for forgiveness. They just looked at me like ‘you killed my son,’ ‘you killed my cousin.’

“I hope they forgive me (now). I’m just so sorry Bryan died. I apologize to them so, so much.”

Smith maintains that, although he knows the punch hurt Biser, he does not believe it was responsible for his death. Instead, he thinks it was Biser’s diabetic condition that killed him.

The night of the incident, Biser refused a CT scan and a prescription for insulin from the emergency room doctor, saying he had insulin at home. When paramedics arrived at his home four days later and found him on the floor, they determined that his blood glucose level was at “a dangerously low level resulting from an overdose of insulin,” according to court records.

The cause of death was determined to be diabetic ketoacidosis, but a medical examiner at trial said the blunt force trauma from the punch was the underlying cause because the injuries “affected how (Biser) looked after himself and therefore left him unable to properly administer insulin.”

Smith said he struggled with re-entry issues after prison but found his six months in the Alvis House re-entry program to be a tremendous help. He is now engaged and said he had hoped the resentencing hearing would put an end to the case.

The restitution issue, however, is one he feels he has to fight.

Still struggling

The Biser family, meanwhile, continues to hurt from the loss of someone who Charlene Biser, Bryan’s mother, called a “loving, peaceful, kind father, son and (someone) loved totally by the community.”

“Our hearts ache daily. The void is irreplaceable,” said Bryan’s sister, Lori Estep. “We lost a part of my parents and, really, parts of each of us in our grieving. Watching my 10-year-old niece process losing her father then and throughout the last 10 years is heartbreaking.”

Charlene Biser finds Smith’s claims denying responsibility for her son’s death troublesome and said the eight years in prison were “not enough for taking someone’s life.” Estep said she hopes Smith will accept responsibility for his role in time.

“Ultimately, you take your victim as you find them,” she said. “Bryan had diabetes. Diabetes played a part (in his death). John Smith deserved a consequence for his actions he set in motion that brought about Bryan’s death.”

She also struggles with the claim that Smith wanted to write a letter of apology to the family and express his remorse.

“I signed a paper and was very clear with Bryan’s attorney, as well as Kathy (Richardson), our victim’s rights advocate, at the start of the trial and throughout the eight-year sentence he served, that I would accept any communication with John Smith on behalf of our family,” Estep said. “Children are taught the importance of saying ‘I’m sorry.’ I could not understand why those simple words were never spoken at the trial, subsequent hearings or even as recently as Tuesday (in court) when he was given the opportunity to speak.”

Charlene Biser said her family members were in the courtroom Tuesday to “represent that our son was a person and not forgotten.” They also wanted to see whether their journey in the case — made somewhat easier with the support of the local judicial system and victim’s advocate program, which they praised for helping them through the past decade — was over.

With what will now likely be another appeal dealing with the restitution question, they see it is not.

“Every court appearance is like a trap door,” Estep said. “You go through life after loss; the door opens when a court date is announced. It’s like falling into those exact moments all over again. Reliving all the emotions, being in that courtroom, all control is surrendered. If feels like goodness or evil will not always guarantee the outcome.”